February 15, 2012

Normally, when you think of a guardianship or conservatorship, you likely think of a person being in charge of another’s personal and financial affairs. You probably assume that most of these individuals are elderly or incapacitated. In many cases, however, the person who needs assistance is a minor.

While most minor guardianships terminate at age eighteen, it is possible to convert a guardianship of a minor into a full guardianship of an incapacitated person if the minor is unable to attend to his or her own affairs due to incapacity, even when they reach the age of eighteen.

On the other hand, sometimes a child is in a situation where his parents cannot care for him. One parent may be deceased and one may be incapacitated, for example. In such instances, another person needs to be in charge of this minor. The minor is considered to be incompetent because he is unable to enter into binding legal contracts, and he is not permitted to make enforceable decisions due to his age. When this occurs, another person must petition the Probate Court for the authority to be in charge of the minor’s financial affairs, (a conservator,) and someone must be in charge of day-to-day affairs for the minor, including medical affairs (a guardian.) Unfortunately, these cases often end up in court with family member battling for control because multiple people believe that they are the better choice to handle these affairs. This is when the court involvement is needed to appoint someone to make all decisions.

In a fairly recent case in Arkansas, there were significant family issues that caused the matter to come before the court. In this case, Timothy Wallace shot and killed his wife, Brandy, along with a friend. He was released on bail, and then left the United States, but he was returned, tried, and sentenced to two life sentences. The death of Brandy and the incarceration of her husband left 3 minor children with no parent to raise them.

Several members of the family proceeded to assert their priorities within the court, and Brandy’s mother, brother his wife, as well as her half-sister, all proceeded to request that they be appointed as guardians for the three children. Brandy’s mother, (grandmother to the children,) was appointed together with Brandy’s brother. Subsequently, the brother and his wife were appointed as the permanent guardians, giving the grandmother visitation rights.

This situation worked out fine for several years, but in early 2010, the guardians decided to limit the visitation of the grandmother, requesting that any visitation with her be supervised. The grandmother then requested that the children be returned to the prior visitation schedule.

At a hearing, the judge admonished all parties by telling the brother and his wife that they should not have unilaterally modified the visitation schedule and telling the grandmother that she needed to make visitation schedules more plausible by obtaining and attending to her own means of transportation.

The brother and his wife appealed the imposition of the visitation schedule that was ordered by the court, which was similar to that of divorced parents. Upon appeal to the higher court, it was decided that the judge did not err in making this visitation schedule similar to that in a domestic proceeding. The best interest of the children was to be maintained, and the judge felt that the formulation of a strict schedule was better than leaving the matter to the parties to attempt to work out the schedule, since that had not been effective in the past.

Perhaps this matter could have been resolved by a skillful mediator or third party professional, but often times, when a matter is initiated in the legal system, there is a reluctance to resolve the matter by mediation, as each party wishes to have their day in court. Unfortunately, the three children in this case were right in the middle of the lawsuit and unable to make decisions for themselves as minors.

All of this could have been prevented had the parents decided ahead of the unfortunate events whom should care for their children if they became unable to do so themselves and drawn up the appropriate paperwork with an attorney.

December 15, 2010

Parents can now provide another party with concurrent authority to make decisions regarding their child's healthcare and school without relinquishing their own control. This video provides details about this revision in Massachusetts estate law. Todd C. Ratner, [email protected], 413.781.0560

This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

October 27, 2010

Previously, if a parent needed to have their minor child or children reside with a non-parent, the non-parent would need a guardianship to allow the non-parent the proper authority to deal with the minor children’s health care providers and school systems.

The drawbacks included the time and cost it took to obtain the guardianship, and also the actual replacement of the parent’s rights to make decision for their children during the guardianship. Furthermore, it required the Court to both initiate the process and to terminate the guardianship.

Now, a new law has been enacted to allow a parent to provide a caregiver concurrent authority to make educational and health and medical related decisions for their minor child. The law provides that the parents can specify any actions that the caregiver shall not be able to take and that the parents continue to retain authority to take any and all actions relative to the children’s health care and education. In addition, the parent’s decision supersedes the caregiver’s decision if there is a dispute.

The document remains in effect until the date specified by the parent, which shall not exceed 2-years, and the document can be revoked by the parent at any time. The enactment of this law shall facilitate providing the necessary authority for a trusted non-parent caregiver care for your children’s well-being without the necessity of involving the court and the correlating time and expense that requires.